Kerala High Court
Joji Joseph vs Kerala State Housing Board - Kshb on 27 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
WP(C) NO. 18587 OF 2022
PETITIONER
JOJI JOSEPH
AGED 52 YEARS
S/O P.O JOSEPH, PUTHUSSERY HOUSE, KANJOOR P.O,
ERNAKULAM DISTRICT. PIN 683 575
BY ADVS.
SURIN GEORGE IPE
ADITHYA RAJEEV
RESPONDENTS
1 KERALA STATE HOUSING BOARD,
HOUSING BOARD OLD BUILDINGS, 1ST FLOOR, SANTHI
NAGAR, THIRUVANANTHAPURAM DISTRICT. PIN 695001
REPRESENTED BY ITS CHAIRMAN
2 CHIEF ENGINEER,
KERALA STATE HOUSING BOARD, HOUSING BOARD OLD
BUILDINGS, 1ST FLOOR, SANTHI NAGAR,
THIRUVANANTHAPURAM DISTRICT. PIN 695001
3 THE EXECUTIVE ENGINEER,
KERALA STATE HOUSING BOARD, DIVISION OFFICE,
AYYANTHOLE, THRISSUR DISTRICT. PIN 680003
4 RASHTRIYA MADHYAMIK SHIKSHA ABHIYAN (RMSA)
7TH FLOOR, TRANS TOWERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM DISTRICT. PIN 695014
REPRESENTED BY ITS SECRETARY
5 DIRECTOR,
RASHTRIYA MADHYAMIK SHIKSHA ABHIYAN (RMSA) 7TH
FLOOR, TRANS TOWERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM DISTRICT. PIN 695014
BY ADVS.
SHRI.V.HARISH, SC, KERALA STATE HOUSING BOARD -
KSHB
WP(C).18587/2022
2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).18587/2022
3
SHAJI P.CHALY. J.
----------------------
W.P.(C).18587 of 2022
-----------------------
Dated : 27th January, 2023
JUDGMENT
This writ petition is filed by the petitioner seeking the
following reliefs :
"to issue a writ of mandamus of any other writ, order or
direction, directing the respondents to disburse the amounts as
per the balance bill submitted by the petitioner in relation to
the construction of girls hostel for GHS Chalakkudy in Thrissur
District under RMSA (including water supply and sanitary
works, Septic Tank, Soak Pit and rainwater harvesting tank),
expeditiously, within a time frame as may prescribed by this
Hon'ble Court."
2. Petitioner is a Contractor registered with the State
Government. Petitioner was awarded with a work by the Kerala
State Housing Board on the basis of a Central Government
Scheme for infrastructure development of the Schools in the
name and style 'Rashtriya Madhyamik Shiksha Abhiyan (RMSA).
According to the petitioner, the work was completed to the
satisfaction of the Kerala State Housing Board and during the
pendency of the writ petition, final bill was also released.
WP(C).18587/2022
However, the retention amount, additional security and security
amounts are not released to the petitioner. A detailed counter
affidavit is filed by the Housing Board disputing the claims and
demands raised by the petitioner.
3. I have heard the learned counsel for the petitioner
Sri.Surin George Ipe and the learned Standing Counsel for the
Kerala State Housing Board Sri.V.Harish and perused the
pleadings and materials on record.
4. The issue raised by the petitioner revolves around
clause 9 of Ext.R3(e) agreement executed between the 3 rd
respondent and the petitioner which is dealing with the security
amount, retention etc., and the manner in which they are to be
released. It reads thus :-
"The bill above alluded to shall be submitted in exact
accordance with the form supplied by the Executive Engineer
and rates at which the value of the work calculated shall be
those entered I the attached schedule of rates. The amount
so held as performance guarantee of Rs.12,97,000/-
(Rs.12,85,000 + Rs.12,000), as per clause 1, shall not be at
any time exceed the Contract amount and in addition to
performance guarantee, security deposit for the work shall
be collected by deduction from the running/final of the
contractors @ 2.5% bill of the gross amount of each running
bill and /or final claims till expiry of defect liability period.
The retention amount which is held as additional security,
WP(C).18587/2022
will be released by the Officer competent to pass the final
bill at his discretion after successful completion of the work,
to the satisfaction of the Board's Officer concerned and
finally taken over by the board retaining only such amount
as he may consider necessary to cover the liabilities, if any
of the Contractor. The maximum period of retaining the
performance guarantee and security deposit is thirty six
months and twenty eight days from the date of completion
of the work. The security amount will if necessary, be
released earlier at the discretion of the Executive Engineer
concerned provided he is convinced that the amount as per
the final bill will cover all liabilities of the Contractor and
records a certificate to that effect and provided further that
the Contractor has produced the latest clearance of Income
Tax and Agricultural Income Tax and Sales Tax. (GST). Till
then the responsibility for the structure will rest with the
contractor."
5. On an analysis of the said provision it is clear that the
retention amount which is held as additional security will be
released by the Officer competent to pass the final bill after
successful completion of the work to the satisfaction of the
Board's Officer concerned and finally taken over by the Board
retaining only such amounts as he may consider necessary to
cover the liabilities if any, of the contractor. However, it is clear
from the said clause that the maximum period of retaining the
performance guarantee and security deposit is 36 months and
WP(C).18587/2022
28 days from the completion of the work. According to the
learned Standing Counsel for the Kerala State Housing Board,
the work was completed in October, 2021 and therefore, it can
be seen that the petitioner is not entitled to get the security and
additional performance guarantee released, since the period
prescribed under the terms of contract is not yet over.
6. Insofar as retention amount is concerned, I am of the
view that since already the final bill is released, it can only be
presumed that the work was measured and the authority found
that there is no defect in the work. In that view of the matter,
there will be a direction to the respondent to release the amount
to the petitioner, if there are no other legal impediment standing
in the way, at the earliest possible, within a period of one month
from the date of receipt of a copy of this judgment. The claim of
the petitioner with respect to the interest, is left open.
The writ petition is disposed of as above.
Sd/-
SHAJI P.CHALY, Judge
Mrcs
WP(C).18587/2022
APPENDIX OF WP(C) 18587/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE COMMUNICATION DATED
30-07-2018 ISSUED BY THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE TAX INVOICE DATED 29-
10-2021 ISSUED BY THE PETITIONER.
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
15-12-2021 SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT
Exhibit P4 A TRUE COPY OF THE NOTICE DATED 25-05-
2022 ISSUED BY THE ASSISTANT VICE
PRESIDENT AND BRANCH HEAD, KANJOOR
BRANCH OF THE FEDERAL BANK
RESPONDENT EXHIBITS
Exhibit R3(A) TRUE COPY OF THE MEMORANDUM OF PAYMENTS,
RECEIPTS SIGNED ON 24/01/2022
Exhibit R3(B) TRUE COPY OF THE G.O(RT) 4697/2017/DPI
DATED 07/12/2017
Exhibit R3(C) TRUE COPY OF THE ORDER NO.
144/P1/2018/RMSA DATED 20/04/2018 ISSUED
BY THE 5TH RESPONDENT
Exhibit R3(D) TRUE COPY OF THE AGREEMENT NO.
1/EE/KSHB/RMSA/2018-19 DATED 28/06/2018
Exhibit R3(E) TRUE COPY OF THE AGREEMENT NO.
EE/TCR/RMSA/2018-19 DATED 14/08/2018
Exhibit R3(F) TRUE COPY OF THE UTILISATION CERTIFICATE
PETITIONER EXHIBITS
Exhibit P 5 True copy of the application dated 13-
12-2022 submitted by the petitioner
under the RTI Act
Exhibit P 6 A copy the information received by the
petitioner from the 4th respondent dated
WP(C).18587/2022
26-12-2022
Exhibit P 7 True copy of the application made under
RTI Act dated 17-11-2022
Exhibit P 8 A copy of the information furnished by
the 3rd respondent dated 14-12-2022
